Myths of surrogacy

In support of National Surrogacy Week, its aim being to celebrate and raise awareness of surrogacy in the UK, this blog post has been written to try and demystify some of the common misunderstandings around surrogacy in the UK.

Myth: ‘Surrogacy is illegal in the UK’.

Surrogacy is legal in the UK; however, it is an offence in the UK to carry out commercial surrogacy arrangements or advertise surrogacy services.

Doing any of the following acts on a commercial basis is prohibited in the UK:

1. Initiating any negotiations with a view to the making of a surrogacy arrangement.
2. Taking part in any negotiations with a view to the making of a surrogacy arrangement.
3. Offering or agreeing to negotiate the making of a surrogacy arrangement.
4. Compiling information to use it to make or negotiate a surrogacy arrangement.
5. Receiving payment made by or on behalf of
   1. a woman who carries a child in pursuance of a surrogacy arrangement
   2. the person or persons for whom she carries it
   3. any person connected with either of those parties.

A person who does any of the acts listed commits an offence. In addition, a person who takes part in the management or control of any body of persons, or of any of the activities of any body of persons, commits an offence. There is provision to exclude non-profit-making bodies from such liability.

However, it is not an offence for the following persons to carry out any of the listed acts, or to cause such an act to be done:

1. A woman who wants to become a surrogate mother herself.
2. Any person wanting a surrogate mother carrying a child for them.

Myth: ‘Paying a surrogate is illegal in the UK’.

The payment of ‘reasonable expenses’ in connection with bearing a child under the terms of a surrogacy agreement is allowed. There is no statutory definition of ‘reasonable expenses’. Each case must be scrutinised on its own facts. There may be reasons in some cases for payments to be made over and above reasonable expenses based on the child’s welfare. Other considerations will include whether the intended parent/s acted in good faith, and whether there has been any attempt to defraud authorities.

Myth: ‘Single people can apply for a parental order’.

As the law stands at the moment it is not open to the court to make a parental order on the application of one person. However, the government has now sent a draft remedial order to Parliament to change the law on surrogacy to enable single parents to be able to obtain legal recognition for their families in the same way as couples can currently do.

Myth: ‘You don’t need a parental order if you have a foreign birth certificate or foreign court order naming the intended parents as the legal parents’.

In the UK, without a parental order the surrogate is the legal mother of the child regardless of whether or not there is a foreign birth certificate or foreign court order naming the intended parents the legal parents. The other legal parent will depend on numerous factors. Obtaining a parental order is therefore essential for any intended parents living in the UK to ensure they are recognised as the legal parents. See our blog on issues surrounding international surrogacy here.

Myth: ‘If the surrogate will not consent to a parental order there is nothing the intended parents can do’.

A surrogate’s consent is required for the court to make a parental order. If consent will not be provided a court can still make other orders based on what is in the child’s best interests, for example to deal with who the child lives with, what time they spend with everyone involved and who has parental responsibility. The court could also make an adoption order. It is important to remember that anything other than a parental order should be considered as a last resort as such orders do not recognise the intended parents status in a child’s life like a parental order would.

Myth: ‘Intended parents can apply for a parental order at any time’.

The application for the parental order must be made within 6 months of child being born. Many intended parents are unaware of this. If an application is made after the 6 months the Court has the dilemma of a child settled with a family but with legislation preventing the making of a parental order. The Court has on occasions tried to overcome this by making orders outside of the timeframe, but in most circumstances the Court’s hands are tied and parents will not be able to obtain a parental order if the application is made after the 6 month deadline.